Unconscionability is the second question a Georgia judge asks before enforcing a prenuptial agreement, and the standard is a demanding one.
The Judge Has to Ask
The review is not optional. In Gravley v. Gravley, 278 Ga. 897 (2005), the Georgia Supreme Court held that when faced with whether to enforce an antenuptial agreement in a later divorce proceeding, “the trial court is required to examine the agreement for unconscionability.” That is true even if neither spouse raises it.
The Standard
Georgia uses its ordinary contract definition. In Mallen v. Mallen, 280 Ga. 43 (2005), the Georgia Supreme Court described an unconscionable contract as “one abhorrent to good morals and conscience . . . where one of the parties takes a fraudulent advantage of another, an agreement that no sane person not acting under a delusion would make and that no honest person would take advantage of.”
That is a much higher bar than an agreement being one-sided, or worse than what a court would have ordered on its own. A bargain you now regret is not automatically unconscionable.
The Question Is Asked as of the Signing
Unconscionability is measured by the circumstances when the agreement was executed, not by how things turned out. The wife in Mallen argued the agreement was unconscionable “when executed” given the gap in the parties’ finances and business experience, and the Court analyzed it on those terms.
Later events are not simply ignored, but they belong to a different question. Whether circumstances have changed enough to make enforcement unfair and unreasonable is the third and separate part of the test a Georgia court applies.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!